Israel’s Supreme Court orders state to enable patients from Gaza to reach medical treatment, cancels policy preventing access to treatment due to alleged family ties to 'Hamas members'

Yesterday evening (Sunday), a petition filed by Gisha, Al Mezan, Adalah, and Physicians for Human Rights Israel was accepted unanimously by Israeli Supreme Court Justices Uzi Fogelman, Isaac Amit, and Ofer Grosskopf, who ordered Israel to allow five medical patients from Gaza to travel via Israel in order to reach medical treatment unavailable in the Strip. The justices also ruled that the Israeli Security Cabinet’s 2017 decision to deny Gaza patients access to medical treatment as means of leverage over Hamas was ineffective and illegal.

The petition was submitted on July 29 2018 on behalf of seven critically ill women from Gaza in need of urgent medical treatment at Palestinian hospitals Augusta Victoria and Al Makassed in East Jerusalem. Israel had denied their applications for exit permits on the grounds that they were “first-degree relatives of Hamas members.” The state argued before the Supreme Court that the patients’ refusals reflected a decision made by Israel’s Security Cabinet in January 2017 which orders “several operative measures to serve as leverage over Hamas with respect to returning captured and missing persons.” The state also confirmed that the patients themselves did not pose any threat to Israel’s security. After the petition was filed, Israel admitted that it had mistakenly identified two of the seven patients as “relatives of Hamas members” and would allow them to reach medical treatment, which had already been greatly delayed. One of the two petitioners is in such a grave condition that she has opted to forgo the bureaucratic process of re-submitting her application for an exit permit from Israel.

Representatives of the petitioners, Gisha attorneys Muna Haddad and Sigi Ben Ari, argued in court that the decision to deny the petitioners – most of whom have cancer – passage through Israel was illegal and effectively constituted a punitive death sentence for reasons entirely out of their control. The State Attorney’s representative, Adv. Arin Safadi-Atilla, presented the court with “exceptions” to the cabinet’s incomprehensible decision, purportedly supplying a “humanitarian solution,” which excluded children under the age of 16 from the policy and allowed patients to access medical treatment only in the West Bank or abroad. Attorney Haddad clarified that Israel was not being asked to subsidize the medical treatment, but simply to comply with its responsibilities towards Gaza residents given Israel’s ongoing control over the crossings. By virtue of its control, Israel is obligated to enable medical patients to enter Israel in order to access necessary medical treatment, an obligation which Israel only fulfills in the cases of severe and exceptional medical conditions.

The justices ruled that Israel’s decision to impose a sweeping prohibition on exit of Gaza residents in need of urgent medical treatment to serve as leverage over Hamas is invalid, stands in violation of fundamental human rights, and moreover, that it does not promote Israel’s objective of returning captured and missing persons. “Ignoring these, and basing the decision on a relative’s prohibited activity, with no suggestion that the patient herself is involved in or even aware of the activity, is contrary to the basic principles to which we are committed,” concluded Justice Fogelman, the lead justice on the case.

The four human rights organizations responded to the decision: “We welcome the Israeli Supreme Court’s decision to allow five critically-ill women – most of whom are suffering from cancer – to exit the Gaza Strip for life-saving medical care. However, it is most regrettable that it required three Supreme Court justices to raise a black flag over a policy that, from the very start, was clearly cruel and illegal. The court rightly dismissed the Israeli defense minister and cabinet’s outrageous decision to use patients in critical condition as bargaining chips, and ruled that this policy contradicts the most basic of values. The Israeli policy that prevented critically ill Palestinians from obtaining life-saving medical treatment marked a new and shameful low in Israel’s collective punishment of Gaza residents. This policy is immoral and in contravention of international human rights norms. The ruling revokes just the latest manifestation of restrictions on patients’ access to treatment and does not deal with Israel’s overall restrictive access policy, which continues to put thousands of patients at risk.”